Maryland appellate court applies good faith exception to GPS use because of prior adoption of Knotts rationale

The Court of Special Appeals of Maryland recently held that the good faith exception to the exclusionary rule from Davis applies to pre-Jones GPS use because of the state's adoption of the Supreme Court's decision in Knotts. Kelly v. State, Nos. 2479 & 2679 (Md. Ct. Spec. App. 2012). In case you're in need of a criminal procedure refresher, I'll go over what all of that means.

First, we know that the Fourth Amendment generally requires a probable cause search warrant in order to conduct a search. Thus, we have to know what is considered a "search." In 1983, the Supreme Court decided United States v. Knotts, in which police placed a beeper device in a container which was later given to the defendant and used to track his location. This act, according to the Court, was not a search.

The Knotts opinion has been applied to other technologies including global positioning systems (GPS). As law enforcement began using GPS devices on vehicles without search warrants, courts readily okayed the act, finding that it was not a Fourth Amendment act. Until the DC Circuit decided this issue in Maynard, each circuit deciding the issue had held that GPS use was not a search. The Supreme Court took the issue in United States v. Jones and held in January 2012 that it was, in fact, a search.

One of the issues that has developed from the Jones decision is whether GPS use prior to the Jones decision violates the Fourth Amendment. This is where things get a little more complicated.

Violations of the basic constitutional rule that searches require search warrants often results in any evidence acquired as a result of the violation to be excluded from trial under the exclusionary rule. However, there are several rules that allow for the evidence to be used regardless - one of them known as the good faith exception. There are several ways that the exception applies - one of them decided by the Supreme Court in Davis v. United States, which held that when there is "binding appellate precedent" that made it legal for law enforcement to do what it did, the evidence will be admissible.

Therefore, applying Davis, law enforcement in the Ninth Circuit could use GPS devices to track suspects prior to Jones because they had binding appellate precedent. Some courts have applied the principle more loosely, holding that a general consensus across the country allows the good faith exception to apply. Conversely, many courts have held that the exception does not apply because no appellate court had addressed the GPS issue. (There are exceptions to each of these and other decisions, too.)

Now, back to the Maryland case. Maryland didn't have binding precedent on GPS use specifically. The Court of Special Appeals didn't take the general consensus approach, but instead took one substantially more broad. Because, the court reasoned, the state "had recognized and applied the rationale of Knotts, the good faith exception would apply. As the court understood it, Davis "does not require there to be a prior appellate case directly on point, i.e., factually the same as the police conduct in question."

Federal courts in the Eleventh Circuit have held similarly, applying a 1981 beeper case.

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Highlighted Paper: Orin Kerr, The Mosaic Theory of the Fourth Amendment

This week I would like to draw attention to Orin Kerr's new article on Mosaic Theory, a theory which gained notoriety after the GPS tracking case United States v. Maynard and was later implicitly accepted by some justices of the Supreme Court in United States v. Jones. I have a personal interest in this topic, since my law review article, Car-ving out the Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction, focused on Maynard and Mosaic Theory as well. This blog has also discussed Jones and Mosaic theory on numerous occasions, making the article that much more relevant.

Congratulations to Orin on his newest publication. And, if you look closely, you'll see that Orin cited a few student pieces that discussed the topic previously in a footnote on page 314.  I was excited to be among those cites, as any student author would be.

The article can be found here: Orin Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012).

The abstract for the article is below:

In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. 

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The Article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.

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Government appeals GPS case to Third Circuit; groups file amicus arguing that warrant is required

As frequent readers of this blog have become well-aware, an interesting fight occurring throughout American courtrooms concerns the interpretation of the Supreme Court's Jones decision and the application of the good faith doctrine to that opinion. Some patterns have appeared, but there are many exceptions to each of them.

One decision, United States v. Katzin, followed a pattern. Typically, if the jurisdiction of the search did not have binding precedent, the good faith exception does not save the search, and the evidence is suppressed. In Katzin (No. 11-226 (E.D. Pa. 2012)), the district court found that the warrantless use of a GPS tracking device violated the Fourth Amendment and cannot be excused under the good faith doctrine. The jurisdiction had no binding authority on the issue and as the installation occurred four months after Maynard, there was a circuit split.

The government has appealed the case, suggesting to the Third Circuit that no search warrant was needed because the Supreme Court did not specifically decide if a warrant is needed to monitor a person's movements via GPS. Further, they suggest that good faith saves the evidence.

The Electronic Frontier Foundation (EFF), American Civil Liberties Union (ACLU), and the National Association of Criminal Defense Lawyers (NACDL) have filed an amicus brief, arguing that Jones requires a warrant for installation of and monitoring with a GPS device and that the good faith doctrine only saves evidence when binding precedent existed at the time of the installation.

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District court holds reasonable suspicion satisfies Jones, good faith exception requires binding precedent

In United States v. Robinson, No. S2-4:11CR00361 (E.D. Mo. 2012), the district court held that the good faith exception should not apply to GPS evidence where there was no binding precedent but also held that reasonable suspicion - rather than probable cause - is sufficient to satisfy the Supreme Court's decision in United States v. Jones.

Law enforcement had conducted surveillance on the defendant over a month and a half period. That, along with interviews they had conducted, gave them "reasonable suspicion," according to the district court judge. After the visual surveillance appeared to corroborate the interviews concerning the alleged fraudulent activity, a GPS device was installed on the defendant's car in early 2010 where it recorded data for nearly two months.

At the motion to suppress hearing, the parties made the normal arguments. The defendant argued the data should be suppressed because no warrant had been obtained, violating the Fourth Amendment according to Jones. The prosecution argued that the Davis good faith exception should apply and save the evidence from suppression. The court, interestingly, disagreed as to both.

Good Faith Exception
In its analysis of the good faith issue, the court first examined precedent as of the installation of the device, looking at Knotts (1983 beeper case), Garcia (Seventh Circuit case finding that GPS use was not a Fourth Amendment event), and Pineda-Moreno (Ninth Circuit case holding the same). Maynard (the DC Circuit case which held that it was a search and was ultimately affirmed by the Supreme Court in the restyled name of United States v. Jones) was handed down in August - nearly five months after the GPS device in the present case had stopped tracking the defendant.

The court acknowledged that most courts in the Seventh and Ninth Circuits apply the good faith exception where GPS has been used prior to Jones, but the more challenging issue is what happens outside of those circuits. Ultimately, the judge held that the Davis good faith rule should not apply here, finding that it only protects law enforcement action where there was binding precedent.

The language of Davis is narrow, and quite specific. In discussing whether the police were culpable, the majority in Davis noted "the officers' conduct was in strict compliance with then-binding Circuit law." Davis, at 2428-29. The opinion repeatedly references "binding" authority, see, e.g., id., at 2428, 2429, 2431, 2434; the majority did not reference "generally accepted authority." Indeed, the majority specifically noted that the situation might be different with "defendants in jurisdictions in which the question remains open."

Also discussed was the need for caution when dealing with technology. "[O]ne may not simply assume that prior case law authorizes conduct when it deals with different technology, is perhaps installed in a different fashion, or permits a different degree of intrusion," reasoned the court.

Reasonable Suspicion
Nonetheless, the court, relying on binding precedent in Marquez, found that the GPS evidence would not be suppressed because reasonable suspicion existed, making the search reasonable. In Marquez, the Eighth Circuit held that GPS installation on a car parked in a public place with reasonable suspicion for a reasonable period of time does not require a warrant.

The defendant argued that Marquez had been abrogated by the Supreme Court's decision in Jones. The court, however, disagreed as it determined that Jones did not specify what level of suspicion is necessary for use of a GPS device. As Marquez had done so and determined that reasonable suspicion was sufficient, that decision was still good law.

Thus, the motion to suppress was denied because reasonable suspicion existed.

Thanks to Jed, a loyal reader, for pointing out this case to us.

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When in doubt, try mosaic theory?

In United States v. Mohamud, 2012 U.S. Dist. LEXIS 151430 (Or. Oct. 22, 2012) the defendant was charged with attempt to use a weapon of mass destruction. He argued two things: (1) that evidence from an alleged date rape investigation by Oregon State Police (OSP) should be suppressed because the consent was not voluntary and the police exceeded the scope of consent, and (2) that because the OSP evidence was poisoned, the FBI's use of that evidence (since they were participating with OSP) was fruit of the poisoned tree.

The case has a number of interesting elements (I would recommend reading it), but a lot of missing info due to national security concerns. To quickly provide a synopsis of the outcome, the FBI essentially provided evidence that it would not be using any of the information from the OSP investigation against the defendant in the national security case.

Here's where it gets interesting - the defendant argued that even if the FBI wasn't going to use any evidence from OSP, what the FBI learned by participating in the OSP evidence "must have [had an effect] on the direction of the investigation, requiring suppression of all evidence obtained after an illegal search or seizure." To support this argument, the defendant attempted to invoke mosaic theory in a hail mary attempt. The defendant interviewed witnesses about mosaic theory, who explained the basics:

[T]he mosaic theory, ... the concept that while some information in specific [documents] may appear harmless to disclose when read in isolation, such information may be very valuable as part of a mosaic of information gleaned from various sources, including multiple [documents] prepared over time. The Supreme Court endorsed the mosaic theory in Sims, 

The only problem with this tactic is that mosaic theory, to the extent it has been injected in Fourth Amendment cases at all, has been used in analyzing individual's reasonable expectation of privacy, see e.g. Maynard (Orin Kerr has an upcoming Michigan Law Review article on mosaic theory and its place (or lack of a place) in Fourth Amendment jurisprudence). To the defendant's credit, mosaic theory has been used in the national security context, but to my knowledge, most often by the government to argue against disclosure of information under the Freedom of Information Act (FOIA) (even National Reporters Committee offers the defendant no support). The attorney get's an A for effort, but the court did not buy it:

The mosaic theory is not the standard, however, when deciding if tainted evidence must be suppressed. The mosaic theory is generally discussed in cases involving the state secrets privilege or the Freedom of Information Act ("FOIA") exemptions for intelligence sources and methods. In analyzing whether evidence is tainted, I will employ the standard explained in Smith, 155 F.3d 1051.

Thus, I must consider whether anything the FBI seized from the OSP investigation, or any leads it gained there, tended "significantly to direct" the national security investigation toward all evidence the FBI collected...

 My guess is that with all the attention mosaic theory has received, it was just a matter of time before it would be tried in other Fourth Amendment cases.

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Another post-Jones GPS case on the calendar this week

This week, on September 6th, the Wisconsin Supreme Court is faced with a GPS tracking case - State v. Brereton. The issues are unique, and include a pre-textual stop to install the GPS tracking, seizure of the car, lies by law enforcement to conceal the process of installing the GPS tracker, and the interaction of GPS tracking with the holding of the United States Supreme Court in United States v. Jones.

I encourage you to read the case briefs. I am cited in the AG's response brief for a point that I noted as relevant but was certainly not the crux of my piece. As a personal note - I would side with the defendant in this case, but the reference to my piece is germane, nonetheless.  The AG cites me for the concept that it should not matter whether the GPS tracking is real-time or the GPS information must be downloaded with human intervention. In footnote 145 I state: "Judge Bell in United States v. Walker forecloses this GPS technology distinction in a notable way: 'That the officers here chose to use a specifically engineered GPS tracking device rather than merely duct-taping an iPhone to Defendant's bumper is of little moment. The technology in this case is in general use….' 771 F. Supp. 2d 803, 811 (W.D. Mich. 2011)." Clearly a reference to Kyllo, although I find it unconvincing.

The Defendant's Brief can be found here.

The Wisconsin Attorney General's Response Brief can be found here. (I am cited on pg. 33).

The Defendant's Reply Brief can be found here.

My law review article can be found in its entirety, here: Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction

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